PUNJAB BEVERAGES (PVT.) LTD. VS APPELLATE TRIBUNAL (CUSTOMS, EXCISE & SALES TAX), 2002 PTD-LAHORE-HIGH-COURT-LAHORE 2957 (2002)

Customs Act (IV of 1969)---

----S. 25---Value of imported goods declared by importer---Difference between importer and department regarding such value---Burden to prove misdeclaration---Duty of department to produce material/evidence to prove misdeclaration---Failure of department to discharge such responsibility---Importer not liable to make any payment of further tax and duties---Principles.

When there is difference between importer and department concerning declaration of value, the Customs Department takes upon itself responsibility to produce material to substantiate that the value of goods has been misdeclared, but such assertion cannot be allowed to be made merely on the basis of whimsical considerations.

In absence of any evidence, importer is not liable to make the payment of difference of taxes.

Civil Petitions Nos. 475-K to 480 of 2000 fol.

Azhar Maqbool Shah for Appellant.

Khan Muhammad Virk for Respondents.

Date of hearing: 7th August, 2002.

JUDGMENT

NASEEM SIKANDAR, J.---After hearing the learned counsel for the parties we will readily agree with the learned counsel for the appellant that the issue in hand stands finally determined by the Honourable Supreme Court of Pakistan in Civil Petitions Nos. 475-K to 480 of 2000, decided on 25-10-2000. The operative part of the aforesaid judgment of the Honourable Supreme Court at para. 4 reads as under:---

"We have carefully perused the impugned order passed by learned Division Bench in Chambers of High Court of Sindh. The controversy, which has given rise in these petitions, indeed is on account of disagreement between parties allegedly on under invoiced value of the imported goods by the respondents. At the time when in all the cases bills of entry were submitted they declared the value of the goods as per the dictates of section 25 of the Customs Act. No objection of whatsoever nature was raised by the Department. Surprisingly at a subsequent stage without collecting admissible or convincing material the respondents were called upon to make payment of deficient customs duty and sales tax which was worked out by the Department behind the back of the respondents. In such-like situation when there is difference between importer and Department concerning declaration of value, the Customs Department takes upon itself responsibility to produce material to substantiate that the value of the goods has been misdeclared but such assertion cannot be allowed to be made merely on the basis of whimsical considerations. Admittedly in instant cases the Department has failed to discharge its onus of establishing that the prices declared by the respondents of the imported goods is not acceptable to it being contrary to prevailing market price of the goods, therefore, in absence of any evidence respondents were not liable to make the payment of difference of taxes. Thus under the circumstances learned High Court has rightly interfered with the orders passed by the functionaries under the hierarchy of Customs Act and for the reasons mentioned above the impugned order admits no interference."

2. Although the learned counsel for the-respondent-Revenue has attempted to distinguish the case in hand yet we are not persuaded to agree. The appellant was one of the respondents before the Honourable Supreme Court in the aforesaid judgment. Like rest of the respondents, it is also engaged in importing of concentrates as franchise holder for manufacture of beverages of different kinds. The concentrate imported by the appellant was cleared by the Custom Authorities after assigning due valuation to the same. The values of the goods as per provision of section 25 of Customs Act were accepted and no objection was raised by the Department. However, subsequently the Department raised the value of the material; that raising of value according to the Honourable apex Court in the said judgment was without collection of admissible or convincing material. Also the Honourable Court found that Department failed to discharge onus of establishing that the prices declared by the respondents at the time of import of goods were not acceptable being contrary to the prevailing market price. In absence of any evidence the Honourable Court held that the appellant and other respondents before the Court were not liable to make any payment of further tax and duties.

3. Since the issue in hand is exactly the same, this appeal shall accordingly be allowed in the light of the judgment of the Honourable Supreme Court of Pakistan.

4. Appeal allowed.

5. This judgment will also dispose of C.As. Nos. 5 of 2000, 55 and 57 of 1998.

S.A.K./P-107/LAppeal allowed.